Statement of Senator Carl Levin on the Nomination of Judge Michael Chertoff to be Secretary of Homeland Security

02/04/05 Levin-Lieberman Letter to Director Mueller of the FBI [PDF]

02/07/05 Department of Justice Response [PDF]

02/10/05 Levin-Lieberman Letter to Alberto Gonzales, Attorney General [PDF]

Mr. President, let me begin by saying that I intend to vote to confirm Judge Chertoff to be Secretary of the Department of Homeland Security based on what I know of him. What deeply troubles me is that information relevant to his confirmation has been arbitrarily denied to the Senate by the Justice Department.

In the course of preparing for the Homeland Security and Governmental Affairs Committee’s hearing on Judge Chertoff’s nomination, a document came to my attention bearing on Judge Chertoff’s responsibilities when he headed the Justice Department’s Criminal Division. The document was recently released by the FBI in response to a Freedom of Information Act, or FOIA, request by the American Civil Liberties Union. It is dated May 10, 2004. It indicates that FBI personnel working at the Guantanamo Detention Facility had major concerns about interrogation techniques used on detainees from Afghanistan by Department of Defense personnel that “differed drastically” from traditional methods employed by FBI personnel. DOD and FBI techniques differed so drastically that FBI agents decided that they had to “step out of the picture” so as not to participate in DOD-led interrogations.

DoD interrogation techniques have been the focus of a number of the investigations into detainee abuse allegations, including abuses graphically depicted in the photographs from Abu Ghraib prison in Iraq. Major General George Fay, who investigated detainee abuses by military intelligence personnel at Abu Ghraib, found that interrogators at that prison were improperly using harsh interrogation techniques that came from Guantanamo, including stress positions, isolation, nudity and the use of dogs to “fear up” detainees. The report of the panel chaired by former Secretary of Defense James Schlesinger found that these “more aggressive” interrogation techniques developed in Guantanamo “migrated” to Afghanistan and Iraq and contributed to widespread abuses. The FBI document that I am talking about today makes clear that concerns about DoD’s interrogation techniques in use at Guantanamo and so strenuously objected to by FBI agents started at least as early as Fall 2002, before the abuses occurred at Abu Ghraib and elsewhere.

The document at issue indicates that FBI agents communicated regularly with Justice Department officials, including senior officials in the Criminal Division headed by Mr. Chertoff before he was appointed to the federal bench. Their communication expressed their deep concerns about techniques employed by DoD personnel. Let me read from that document, which is displayed on the chart beside me. It is from an FBI email to TJ Harrington (Division 13) from an official whose name has been redacted. It reads in part as follows:

I went to GTMO with BLANK early on and we discussed the effectiveness of BLANK with the SSA [Supervisory Special Agent]. We (BAU [Behavioral Analysis Unit] and ITOS1 [International Terrorism Operations Section 1] had also met with General’s Dunlevey and Miller explaining our position (Law Enforcement techniques) vs. DOD. Both agreed the Bureau has their way of doing business and DoD has their marching orders from the Sec Def. Although the two techniques differed drastically, both Generals believed they had a job to accomplish....In my weekly meetings with DOJ we often discussed BLANK techniques and how they were not effective or producing Intel that was reliable.”

Then there is a series of blanks, which appear to be individuals’ names that have been redacted, withheld from release, with the abbreviation “SES” after the names indicating the individuals were members of the Senior Executive Service. The document then says all o f those SES employees were from the DOJ Criminal Division and they

“attended meetings with FBI. We all agree BLANK were going to be an issue in the military commission cases. I know BLANK brought to the attention of BLANK.”

It is those redactions, the information that has been deleted, including the names of the senior officials in the Criminal Division participating in meetings with the FBI agents, which thwart the Senate in its Constitutional role of deliberating on Judge Chertoff. Judge Chertoff was the head of the Criminal Division of the Justice Department from April 2001 until June of 2003.

On February 4, 2005, Senator Lieberman and I wrote to FBI Director Robert Mueller regarding this document. A copy of that letter is displayed next to me. It states: “We ask that an unredacted version of this three-page document be provided to the Office of Senate Security where we and staff members with appropriate clearance can review it. Please provide an unredacted copy...by no later than 4:00 pm on Friday, February 4, 2005. If you will not provide a copy of this document, please provide a legal justification for doing so.”

In a letter dated February 7, 2005, the Department of Justice – not the FBI to whom we wrote but the Department of Justice – wrote back denying our request. The Justice Department claimed that an unredacted copy could not be provided because it contained “information covered by the Privacy Act,...as well as deliberative process material.”

The Justice Department’s reasons for denying our request are not just unfounded and unacceptable. They are incredible. They are extreme. The Privacy Act is designed primarily to prevent the U.S. government from disclosing personal information about private individuals who have not consented to that disclosure. It is not intended to be a means of concealing the names of public officials engaged in government conduct funded with taxpayers’ dollars. The Department of Justice’s invocation of the Privacy Act to deny the Senate relevant information regarding a nomination before the Senate is an abuse of the Privacy Act and a dangerous precedent. Denying Congress documents relevant to our functions, if sustained, would effectively end most Congressional oversight because government employees are named in thousands of documents that Congress relies on in carrying out our responsibilities. Senator Lieberman and I have written to Attorney General Gonzales requesting that he reconsider the decision to withhold this information.

When I asked Judge Chertoff about this document at his nomination hearing on February 2, he could not recall discussions between FBI and DOJ Criminal Division officials concerning DOD interrogation techniques at Guantanamo. He stated, “... I don’t recall having any discussion about techniques that the Defense Department was using in Guantanamo, other than simply the question of whether interrogations or questioning down there was effective or not.” Judge Chertoff could not say who were the Criminal Division officials whose names had been redacted from the document. Nor could he even confirm that the discussions referred to in the document between people from his Criminal Division and the FBI and Defense Department officials occurred during his tenure as head of the Criminal Division.

If Judge Chertoff doesn’t know that these discussions took place or who in his division might have engaged in these discussions, or when they took place, doesn’t that end the matter? Of course not. By denying the Senate access to the names listed in this document, the Department of Justice has prevented the Senate from finding out that information so that we might refresh Judge Chertoff’s recollection about the conversations referred to in the document with the senior Criminal Division personnel regarding DoD interrogation techniques at Guantanamo. If the names of the Criminal Division personnel were known to him or to us we could surely ask them whom they discussed these matters with higher up in the Criminal Division, including possibly with Judge Chertoff. We clearly have a right to find out their names to ask them the same relevant questions we could ask them if their names were not redacted.

By its contorted reliance on the Privacy Act, the Justice Department is denying the Senate information relevant to our consideration of whether to give our consent to this nominee. Our Constitutional mandate is clear. The Justice Department’s decision to cover up this information is deeply disturbing. Not only is the Senate being thwarted. The American public is being denied relevant information. If this misuse of the Privacy Act is not resisted, Congressional oversight of our governmental activities will be controlled by the Executive Branch that we are supposed to oversee. We cannot allow the Department of Justice action to stand unchallenged.

The particular FBI document that Senator Lieberman and I have sought and the other FOIA documents dramatize the refusal of the Administration to be straight with the American people and with Congress relative to the detainee abuse issue. Thwarting Congressional oversight seems to be deeply ingrained in the Administration, particularly on the issue of detainee abuse.

From the start, the Administration has been slow in alerting Congress on the issue of detainee abuse. Specialist Joseph Darby courageously came forward to the Defense Department with allegations and photos of horrible abuses at Abu Ghraib on January 13, 2004. Yet the Administration did not inform Congress of the existence of the nature and scope of these allegations and photos until April 28th, 2004, the day these pictures were aired on a major network news program. The Congress only learned of the report of Major General Taguba, who investigated the allegations of abuse by military police at Abu Ghraib between January 31 and March 12th, 2004, after it was leaked to the press in early May. We did not learn of White House Counsel Gonzales’ memo of January 25, 2002, advising the President that the protections of the Geneva Conventions were “obsolete” and “quaint,” until it was obtained by the press in mid-May 2004. We did not learn of the August 1, 2002, memo by the Office of Legal Counsel on his novel interpretation of the anti-torture statute, the so-called Torture Memo, until it was obtained by the press in early June 2004. This was the memo that defined prohibited torture extremely narrowly, for example that physical pain would have to be equivalent to organ failure, impairment of bodily functions, or death to count as torture under the anti-torture statute. And we now know of a second Office of Legal Counsel opinion from around the same time as the August 1, 2002, Torture Memo, which analyzes the legality of specific interrogation techniques. This memo has still not been made available to the Congress.

The Armed Services Committee made a standing request, on May 13, 2004, in a letter from Chairman Warner to Secretary Rumsfeld, for “all relevant documentation” relating to allegations of prisoner abuse, and for “all legal reviews and related documentation concerning approval of interrogation techniques.” The response can only be considered slow and partial.

The Defense Department has engaged in considerable foot-dragging in getting Congress the findings of its investigations into key aspects of the detainee abuse issue. Although the Defense Department at one point estimated that the report of General Formica regarding abuse allegations against special operations forces in Iraq would be ready last August, and this report was briefed to the Secretary of Defense over a month ago, only late last Friday afternoon did the Armed Services Committee receive this report. We have yet to receive the report of Navy Inspector General Vice Admiral Church into DoD interrogation techniques in Guantanamo, Afghanistan, Iraq, and elsewhere. The Defense Department initially estimated that this report would be ready six months ago. The Department’s slow-rolling has delayed additional public hearings on the detainee abuse issue.

It is astonishing to me that only after becoming aware of the allegations of detainee abuse at Guantanamo contained in the documents produced by the FBI under the ACLU’s FOIA request did the Defense Department direct that an investigation into these allegations be initiated.

The FBI documents that have been released under the FOIA request, although redacted, nonetheless describe the FBI’s “battles” during 2002 and 2003 with DoD commanders at Guantanamo regarding the use by DoD of “aggressive” and “coercive” interrogation techniques. In response to an FBI internal inquiry, allegations of detainee mistreatment at Guantanamo surfaced during the summer of 2004. This led the Bureau’s Inspection Division in July 2004 to contact all employees who served at Guantanamo after September 11, 2001, and request any information regarding detainee mistreatment at that facility.

FBI employees’ responses to the FBI Inspection Division’s request relating to Guantanamo indicate that FBI personnel repeatedly raised concerns regarding DoD interrogation techniques, including with DoD commanders at Guantanamo from late 2002 into mid-2003. One email, dated May 10, 2004, describes how FBI officials raised their concerns with General Dunlavey, who was in charge of interrogation operations until October 2002, and with General Miller, who was commander of the facility from October 2002 until March 2004. In these discussions the FBI officials were told, “DoD has their marching orders from the Sec Def [Secretary of Defense].” The agent adds, “Although the two [agencies’] techniques differed drastically, both Generals believed they had a job to accomplish.”

Another email dated December 9, 2002, states that it has two attachments: a description of an interrogation matter raised with the Commanding General at Guantanamo, presumably General Miller; and secondly, “an outline of the coercive techniques in the military’s interviewing tool kit.” The FBI agent concludes by promising to bring back to Headquarters a copy of the military’s Interview Plan for an unnamed detainee, saying, “You won’t believe it!”

The responses to the FBI’s internal inquiry show that FBI officials had many objections to DoD interrogation techniques. In his confirmation hearing, Judge Chertoff suggested that FBI and DOD differences regarding interrogation techniques at Guantanamo might have related to whether Miranda warnings were provided. But that was not the case. FBI agents had official guidance not to provide to detainees at Guantanamo. The differences between the two agencies’ methods were different than that and went much deeper.

Other FBI documents produced under the FOIA request show that agents complained about the effectiveness of DoD’s methods for producing reliable intelligence compared to the FBI’s interviewing techniques. One agent reported telling DoD officials that the intelligence DoD was producing was “nothing more than what FBI got using simple investigative techniques...” Another FBI official complained that whenever an agent would begin to develop a rapport with a detainee, “the military would step in and the detainee would stop being cooperative.”

Another major FBI concern was that DoD interrogators were impersonating FBI Agents. In one email, dated December 5, 2003, an agent complained that DoD interrogators had impersonated FBI agents in attempting to produce intelligence. The FBI agents expressed the concern that should this detainee’s story ever be made public, the FBI will be left “holding the bag” because it would appear that “these torture techniques were done [by] ‘FBI’ interrogators.”

A couple of the FBI emails challenge Defense officials’ public statements in 2004 regarding DoD methods of interrogation used at Guantanamo. For example, one email, dated May 13, 2004, reacts to statements of Major General Geoffrey Miller, who at that time had moved from commanding the Guantanamo facility to Iraq, where he was in charge of all detention facilities, including Abu Ghraib. It states:

“Yesterday...we were surprised to read an article in stars and stripes, in which gen miller is quoted as saying that he believes in the rapport-building approach. This is not what he was saying at gitmo when i was there. [Redacted] and i did cart wheels. the battles fought in gitmo while gen miller he [sic] was there are on the record.”

The FBI agents’ responses to the Inspection Division’s request regarding Guantanamo refer to other documents reflecting the FBI agents’ serious concerns over DoD interrogation techniques. Among the documents cited are a lengthy “electronic communication” (EC) drafted by the FBI’s Behavioral Assessment Unit dated May 30, 2003, contrasting the Bureau’s interrogation methodology with that of DoD; an electronic communication by the FBI’s Military Liaison and Detention Unit in November 2003 “as to FBI’s disapproval [redacted] regardless of whether they [DoD interrogation techniques] were approved by the Deputy Secretary of Defense”; and a “must read” electronic communication from the FBI’s Miami Division. Also, a December 2003 email refers to a request by the Military Liaison and Detention Unit that “information be documented to protect the FBI” because of their “long standing and documented position against use of some of DOD’s interrogation practices....” Either these documents remain unreleased to the public or, if released, their content has been almost entirely redacted.

Reflecting the position in the documents I’ve referred to is a May 19, 2004, memo to all divisions from FBI General Counsel Valerie Caproni. This memo states that “existing FBI policy...has consistently provided that FBI personnel may not obtain statements during interrogations by the use of force, threats, physical abuse, threats of such abuse or severe physical conditions” and that “no interrogation of detainees, regardless of status, shall be conducted using methods which could be interpreted as inherently coercive, such as physical abuse or the threat of such abuse to the person being interrogated or to any third party, or imposing severe physical conditions.” It adds that FBI personnel who participate in interrogations with non-FBI personnel shall comply with FBI policy at all times. Specifically, “FBI personnel shall not participate in any treatment or use any interrogation technique that is in violation of these guidelines regardless of whether the co-interrogator is in compliance with his or her own guidelines.” Accordingly, the guidance to FBI personnel was to remove themselves from the situation if the interrogation is being conducted in a manner not compliant with FBI policy.

In response to the FBI Inspection Division’s request, several FBI agents reported observing “aggressive treatment” of detainees at Guantanamo. One agent reports witnessing on a couple of occasions detainees “chained hand and foot in a fetal position on the floor, with no chair, food or water.” He describes how often times these detainees had urinated or defecated on themselves, having been left in this position for 18-24 hours or more. One detainee subjected to these techniques had apparently been “literally pulling his own hair out throughout the night.” The agent speculated that these techniques were being used by “the military, government contract employees” and a third group whose identity has been redacted.

The FBI documents indicate that Bureau officials intended to notify the Defense Department regarding the FBI Inspection Division’s findings regarding Guantanamo abuse allegations. A summary of that internal inquiry states that 26 of the agents who responded to Inspection Division’s request said they had observed some form of detainee mistreatment by non-FBI personnel. After reviewing these statements, FBI General Counsel Valerie Caproni deemed 17 of these incidents to involve “appropriate DoD approved interrogation techniques.” The remaining nine were determined to require follow-up interviews. The summary states that the FBI Inspection Division was to prepare a report based on those follow-up interviews, to be forwarded to General Counsel Caproni, who would in turn notify the Defense Department. It isn’t clear whether this report was ever prepared or provided to the Defense Department. If it does exist, the Defense Department has not provided it to the Senate Armed Services Committee.

In addition, other FBI documents released under the FOIA request include a partially-redacted letter, dated July 14, 2004, from Thomas Harrington, who served as the head of the FBI team at Guantanamo, to Maj. Gen. Donald Ryder, commanding general of the Army Criminal Investigation Command, detailing highly aggressive interrogation techniques at Guantanamo. The incidents witnessed by FBI agents as early as Fall 2002 include what appeared to be a female interrogator squeezing a male detainee’s genitals and bending back his thumbs, and the use of a dog to intimidate a detainee. Details of a third incident were redacted from the letter, but according to the press, the letter describes a prisoner gagged with duct tape covering much of his head to prevent him from reciting the Koran. Another incident involved a detainee suffering from extreme mental trauma after being kept in an isolation cell flooded with lights for three months.

The Harrington letter indicates that these incidents and other FBI concerns were discussed with two officials in DoD General Counsel’s office in mid-2003. Despite the Armed Services Committee’s standing request for “all relevant documentation” relating to the prisoner abuse issue, the Committee was not told by the Defense Department of their receiving the Harrington letter last July, nor have we been informed regarding what actions the Department took in response to these allegations. What the documents produced under the FOIA request indicate is that the Administration’s policies on the meaning of torture and the legality of specific interrogation techniques had taken the lid off what constituted aggressive interrogation techniques and opened the door to abuses. The document that Senator Lieberman and I have sought in the course of the Judge Chertoff’s nomination proceedings shows clearly that the FBI was raising its concerns about DoD interrogation techniques as early as the fall of 2002. This would be a few months after the Justice Department’s Office of Legal Counsel issued its August 1, 2002, memo interpreting the federal anti-torture statutes.

A December 2002 memo by Secretary Rumsfeld put the stamp of approval additional interrogation techniques that went beyond those under existing Army doctrine for use at Guantanamo. These included stress positions; isolation; deprivation of light and auditory stimuli; 20-hour interrogations; nudity; and exploiting a detainee’s phobias (such as fear of dogs). One month later Secretary Rumsfeld rescinded his approval of these techniques. He ultimately approved in April 2003 a narrower set of interrogation techniques. Regardless of which memo was in effect at the time of the FBI memo, Congress needs to find out whether the alleged mistreatment reflected the most aggressive DoD approved interrogation techniques temporarily authorized for Guantanamo in December 2002, or went beyond even those.

The concerns that the FBI expressed to the Defense Department were classified, but reports of abusive practices at Guantanamo leaked to the press. A New York Times article from November 2004 reported on a confidential International Committee of the Red Cross (ICRC) report, which found that the highly refined system for the detention and interrogation of detainees at Guantanamo was “tantamount to torture.” The article also states that the report, based on an ICRC visit to the facility last June, notes incidents of detainees being subjected to loud, persistent music, prolonged cold, and “some beatings.”

Another New York Times article dated January 1, 2005, cited anonymous interviews with military officials who participated in interrogations at Guantanamo, confirming the use of the same kinds of aggressive interrogation techniques that FBI agents reported. These techniques reportedly included shackling inmates for hours, leaving them to soil themselves or subjecting them to loud music. Again, as the reports of General Fay and the Schlesinger Panel concluded, it was these aggressive techniques in use at Guantanamo that migrated to Afghanistan and Iraq and contributed to the occurrence of detainee abuse there.

It was not just the FBI that objected to these techniques. We have recently learned of a June 2004 memorandum written by Defense Intelligence Agency (DIA) Director, Vice Admiral Lowell Jacoby, to Under Secretary of Defense for Intelligence Stephen Cambone advising him that DIA interrogators had been threatened by U.S. special operations forces, instructed not to leave the compound, and ordered not to talk to anyone in the United States when the DIA personnel observed and sought to document and report that they had observed those personnel physically abuse a detainee during an interrogation in Iraq.

The Jacoby memorandum is another example of how this Congress has not been kept apprised and is only finding out after the fact about the depth and breadth of the allegations of detainee abuse.

That is totally unacceptable and should energize the Congress. But what should doubly energize us – all of us – is when the Department of Justice denies us information relevant to our Constitutional responsibilities after a specific request for the information.

Mr. President, my purpose in coming to the floor this afternoon is to alert the Senate to this direct challenge to our ability not only to perform our confirmation responsibilities but our ability to perform our oversight function so essential to the system of checks and balances that serve as a brake on the powers of the Executive Branch.

It’s not the first time the Administration has asserted broad new powers to withhold information from Congress. A broad claim of executive power was made in a letter sent to Senator Warner and me from the Deputy General Counsel of the Department of Defense on June 15, 2004. The letter referred to “the President’s constitutional authority to withhold information the disclosure of which could impair foreign relations, [or] national security, [or] the deliberative process of the Executive.”

Presidents traditionally claim the constitutional authority to assert executive privilege when personally determining that it is necessary to do so to protect the ability to receive candid advice from senior officials in the executive branch.

But that is not the issue here.

The privilege asserted by that DoD letter is not limited to cases involving presidential deliberations and advice given to the President himself. That letter asserts the power to make unilateral decisions to withhold documents relating to foreign relations, national security, or deliberations within all parts of the executive branch. That’s a breathtaking claim that must be resisted, and resisted on a bipartisan basis, by any Congress serious about the oath we have taken to defend the Constitution. The DoD letter is a bald assertion of a privilege whereby Executive Branch officials can withhold anything from Congress that those officials, in their sole discretion, determine to be sensitive, embarrassing, or make such officials uncomfortable. Congress insisted on access to documents of this kind in the past because they are essential to the conduct of our oversight functions.

The document withheld from us in the confirmation matter before us goes beyond any previous assertion by any administration ever, as far as I can determine. There has been no claim of executive privilege here and the document itself has no bearing on any advice given to the President by anybody.

All of us should object to the withholding of the complete May 4, 2004, FBI memo which refers to discussions at which members of the Justice Department’s Criminal Division were present involving abuses at Guantanamo, when Judge Chertoff was head of that division.

The Department of Justice’s use of the Privacy Act takes the efforts to thwart Congressional oversight to a new extreme. It is the latest manifestation of the Executive Branch’s determination to seize any crumb of justification to prevent Congress access to Executive Branch documents needed to carry out our constitutional responsibilities of confirmation and oversight.

Congress cannot sit idly by while the Executive Branch asserts sweeping authority to frustrate Congress’ exercise of our Constitutional responsibilities. Broad Executive Branch assertions of privileged information and its distortion of the Privacy Act threaten to reduce the Senate’s role in advising and consenting on senior level appointments to an exercise in rubber stamping the Administration’s nominees. The Senate must assert its constitutional power to get information relevant to the confirmation process and to our oversight responsibilities. Congress has not carried out its constitutional oversight responsibilities in the area of detainee abuse, as evidenced by the fresh revelations of abuse allegations in Iraq, Afghanistan, Guantanamo and elsewhere. Those allegations came not from our oversight activities but from FOIA requests and media initiatives. The Administration has not lived up to its promise to keep Congress informed on the issue of prisoner abuse. The Administration has effectively stifled even modest Congressional efforts at oversight.

Based on the information available I will vote to confirm Judge Chertoff, as I believe most or all of us will. But all of us should stand up to the Administration’s denial of a document relevant to that confirmation. And we should act in unison to affirm and carry out the Senate’s traditional oversight activities, regardless of which Party controls this body or the White House.